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Main: Arian Simone, one of the co-founders and CEOs of The Fearless Fund, speaks to media as attorney Benjamin Crump, back left, looks on, outside the James Lawrence King Federal Building in Miami, following a hearing on Wednesday, Jan. 31, 2024. (AP Photo/Rebecca Blackwell). Inset: Edward Blum speaks during a news conference on the Supreme Court’s decision on affirmative action in college admissions at the Press Club in Washington, Thursday, June 29, 2023. (AP Photo/Jose Luis Magana).
Conservative activist Edward Blum, the driving force behind the U.S. Supreme Court’s recent eradication of race-based affirmative action programs in college admissions, convinced a federal appeals court that a grant program designed to give Black women business owners access to funding should be struck down.
Two federal judges appointed to the U.S. Court of Appeals for the Eleventh Circuit by Donald Trump sided with Blum and against a venture capital firm’s grant program for Black women business owners Monday. The ruling is the latest blow dealt to a program seeking to increase racial diversity in the professional world.
The program, the Fearless Strivers Grant Contest, known as the “Fearless Fund,” is an entrepreneurship funding competition that is open only to businesses owned by Black women. The program’s goal is to “bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies.” Four winners are offered $20,000 apiece along with digital tools and mentorship to help their businesses flourish. Eligible businesses must be at least 50% owned by Black women.
Blum’s organization, the American Alliance for Equal Rights, sued along with three unnamed non-Black business owners, alleging that the contest’s rules constitute a civil rights violation and requested a preliminary injunction to stop the foundation from continuing its application process. The district court allowed the lawsuit to move forward, but refused to issue a preliminary injunction stopping the program.
On appeal, the Eleventh Circuit ruled 2-1 to reverse the lower court’s ruling and said that the Alliance had adequately demonstrated that its members suffered a concrete injury by being excluded from eligibility.
U.S. Circuit Judges Kevin Newsom and Robert J. Luck — both Trump appointees — sided against the fund. Newsom wrote for the court and said that the unnamed plaintiffs had both standing to sue and a likelihood of succeeding on the merits of the case. Newsom distinguished the Fearless Fund’s practices from those of the Christian website designer who refused to create websites for hypothetical gay couples. That case involved free expression, said Newsom, while the Fearless Fund “simply — and flatly — refuses to entertain applications from business owners who aren’t ‘black females.”” That flat refusal, said Newsom, was discriminatory.
U.S. Circuit Judge Robin Stacie Rosenbaum, a Barack Obama appointee, began a lengthy dissent with a soccer analogy in which she likened the unnamed plaintiffs’ case to faking an injury by “flopping on the field”:
No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham. But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal. For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal. Referees’ vigilance prevents players who have a sincere desire to defeat their opponents — but who try to do so through manufactured fouls — from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks.
Rosenbaum said that the Alliance’s plaintiffs were paying mere “lip service to the idea they are ‘ready and able’ to participate in Fearless’s Contest,” while the evidence shows that none of them has a genuine interest in actually entering the contest.
“Indeed, not one has established that she is, in fact, able and ready to enter the Contest and would do so in the upcoming period if the Contest were open to non-Black women,” Rosenbaum wrote.
Newsom addressed Rosenbaum’s analogy in the body of his opinion, and said that he does not believe the plaintiffs to be “flopping.”
“[T]he Constitution doesn’t require chapter and verse,” wrote Newsom, who said that the unnamed plaintiffs were “real-live, flesh-and-blood individuals who were excluded from the opportunity to compete in Fearless’s contest solely on account of the color of their skin.”
“Respectfully, victims of race discrimination — whether white, black, or brown — are not floppers,” said Newsom.
Nearly one year ago, the U.S. Supreme Court eradicated race-based affirmative action programs in college admissions in a 6-3 ruling against Harvard University and the University of North Carolina. In a scathing dissent from the ruling, U.S. Supreme Court Justice Ketanji Brown Jackson wrote that race-based disparities in income and health that are “the predictable result of opportunity disparities,” and not “a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, ‘stand on [their] own legs.’”
Jackson argued that in the context of college admissions, a requirement that admissions programs, a requirement to ignore race “will inevitably widen that gap, not narrow it,” and, “will delay the day that every American has an equal opportunity to thrive, regardless of race.”
Blum said in a statement that programs like the Fearless Fund are “unjust and polarizing,” and praised the ruling.
Fearless Fund CEO and Founder Arian Simone called the ruling “devastating” and slammed the ruling as a message that “diversity in Corporate America, education, or anywhere else should not exist.”
“These judges bought what a small group of white men were selling,” said Simone.
You can read the full ruling here.
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